Op-Ed: Can public business be private' conversation?

The First Amendment protects our free speech from government control, punishment or interference — but when public officials speak freely through private email accounts or mobile phones, are they free to ignore freedom of information laws?

On one hand, they are paying from their own funds for those means of communication — and even public officials have private lives, though less so than before their win at the ballot box or appointment to public office.

But it would seem that there’s nothing really “private” about a conversation about public policies, or about spending public funds, or making hiring decisions for public employment.

States are about evenly divided on whether the latter kind of conversations is covered by FOI or public records laws. A recent Associated Press story, citing data from the Reporters Committee for Freedom of the Press, noted that 26 states see private emails or other kinds of electronic communications about government business as public records. Those records generally are to be held open for review by citizens, and subject to laws and regulations on how long they must be stored and retained.

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The most recent battleground over the issue is in California, which had not defined access to such information. A state court judge ruled recently that private text messages, emails and other electronic communications sent and received by San Jose officials about city affairs are public records.

But that ruling won’t address the question for 23 other states where public officials may well be able to discuss sensitive decisions – major spending proposals or the hiring of top officials like school superintendents – out of the view of taxpayers and fellow citizens.

One common tactic used to avoid public scrutiny is to hold a series of calls involving fewer officials than a majority, or whatever critical number might be specified in state FOI laws requiring public meetings. The approach may well meet the letter of the local law, but it avoids its spirit – that citizens be able to view the entire decision-making process.

Public officials ought to be able to converse individually: There’s no point in requiring public notices for random hallway meetings or the mundane daily matters involved in operating public agencies. And there are some areas – law enforcement, individual personnel matters or court proceedings – where outright secrecy is appropriate.

If such “private” cell phone or email exchanges were limited to such necessary situations, there’s no problem. But such conversations also can be used to mask uncomfortable or politically-sensitive conversations, or worse, to hide fraud, waste and corruption.

Without access and visibility, the public cannot determine the motive or manner behind such calls and messages. In an era in which many citizens already are predisposed to distrust government activity, hidden discussions of public business just feed that negative situation.

In the end, doing public business in public is a double-positive – it removes questions about decision-making even as it invites greater citizen interest and engagement in the process of self-governance.

The right of the people peaceably to assemble, and to petition the government for a redress of grievances depends in no small degree on having enough information about public policy and business, in a timely fashion, to intelligently assemble and seek changes from their elected officials.

In the light of that majestic constitutional exercise between the governed and their governors, “Who owns that cell phone?” seems a petty and irrelevant question.

Gene Policinski is senior vice president and executive director of the First Amendment Center. Email him at gpolicinski@fac.org